PSES115-18/19WC
Text
ELRC 439-20/21 KZN
Award Date:
19 April 2022
Case Number: ELRC 439-20/21 KZN
Commissioner: Nonhlanhla Dubazane
Date of Award: 19 April 2022
In the matter between
NAPTOSA obo Moonsamy Govender
(Union/Applicant)
And
DEPARTMENT OF EDUCATION – KWAZULU NATAL
(Respondent)
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was heard on the 1st September 2021 & 31st January 2022 respectively under the auspices of the Education labour Relations Council. Proceedings at Dainfern, Ashville, Durban.
1.2 The Applicant, Mr Moonsamy Govender was present and represented by Mr Rishal Jugath, a NAPTOSA official. The First Respondent is KwaZulu Natal Department of Education (the Department). The Second Respondent is Mr Navendra R Naidoo. The First Respondent was represented by its HR Manager, Mr I M Makhooe. The Second Respondent was represented by SADTU official.
2. ISSUE TO BE DECIDED
2.1 I have to determine whether the Respondent committed an unfair labour practice relating to promotion by unlawfully appointing Mr PN Moodley as the electoral officer to conduct SGB bi-elections.
3. BACKGROUND TO THE ISSUE
3.1 Mr Govender works for the First Respondent (The Department). The Department oversees primary and secondary education in South Africa.
3.2 The Applicant referred an unfair labour practice dispute relating to promotion to the bargaining council.
3.3 The matter was conciliated and remained unresolved. A certificate of non – resolution was issued.
3.4 Arbitration proceedings took place on the dates aforementioned.
3.5 The Applicant averred in his opening statement that the appointment of the electoral officer, Mr P M Moodley was unlawful, and as such the SGB was illegitimate. The conduct of the First Respondent amounted to an unfair labour practice relating to promotion. The relief he is seeking is that the appointment be declared unlawful and the selection process be started afresh. .
3.6 The Respondent stated that selection process in terms of HRM 70 of 2018 has got nothing to do with election of SGB members. The election of Mr PM Moodley as the electoral officer was lawful.
3.7 Parties submitted Annexures A – D.
4. SURVEY OF EVIDENCE AND ARGUMENT
Common cause facts
4.1 A position of Principal: Phoenix Technical School (post number 241) was advertised and he responded to the advert. He was shortlisted and participated in the interviews “first round” which took place on the 13th July 2019. Subsequent thereto he and others lodged a grievance in relation to the selection process. KS Naidoo was the acting principal at Phoenix Technical School at the time and he was also the applicant to the post.
4.2 Mr Govender’s claim was that the school governing body (SGB) was illegally constituted as the electoral officer who was conducting the school governing body (SGB) by-elections, PM Moodley was not formally appointed
4.3 The appointment letter for PM Moodley was not produced at the grievance hearing.
4.4 The Second Respondent, Mr Navendra Naidoo was appointed to the disputed post.
4.5 HRM Circular 70 of 2018 regulates the recruitment and appointment processes at the Respondent.
Applicant’s case
4.6 Mr Moonsamy Govendor took an oath and gave the following evidence:-In summary and of importance in this case he informed us about his educational qualifications.
4.7 He said the following:-. There was no appointment that was made during the first round because he and other members had lodged a grievance. Mr KS Naidoo and another person also lodged a grievance.
4.8 It happened that the SGB members had resigned and their resignation meant that there was no governing body in place after round one which then necessitated a bi- election of the new governing body members.
4.9 It is the electoral officer who conducts the election of the SGB. In the case of Phoenix Technical school their neighbouring school is Greenbury Secondary School. The Principal of Greenbury at the time was H Ramnarian and he was electoral officer for Phoenix Tech. He conducted the SGB bi-elections and elected 7 members. Two members of the SGB had gone AWOL. He (Mr Govender) thought that there should have been a second bi-election to elect members to replace them.
4.10 The second bi-election took place around November 2019. He (Mr Govender) questioned the validity of the second round of bi-elections because the electoral officer that was tasked to conduct the process was not formally appointed.
4.11 The procedure for appointing the SGB electoral officer lies with the Head of Department. The Head of department does not physically appoint all electoral officers. It is impossible to do that. The circuit manager takes charge of that.
4.12 Electoral officer has been defined in the Provincial Gazette No.1895. Phoenix Techincal had an appointed electoral officer. Namely, H Ramnarain. He was not appointed as electoral officer for the second round of bi-elections. The electoral officer was PM Moodley.
4.13 Mr Moodley’s appointment was not legitimate because there was no deployment letter. He (Mr Govender) lodged a grievance regarding the “acting principalship” at Phoenix Technical school. The grievance hearing for “acting principalship” was held on 13 March 2020 and one of the two issues that were raised in the grievance was the invalidity of the SGB. He questioned the appointment of Mr P M Moodley as an electoral officer of the SGB.
4.14 The SGB produced a letter as required by the grievant. Reference is made to paragraph 3 titled “FINDINGS” in the chairperson’s recommendation after the grievance hearing was held. The following is stated:- “There was prima facie evidence that an appointment of Mr PM Moodley as an electoral officer was above board, a letter was produced The SGB is legitimate and proper as per SASA requirements.” He (Mr Govender) was present at this grievance hearing. The letter that is mentioned was not presented on the 13th of March 2020.
4.15 He (Govender) wrote his affidavit on the 10 October 2020 wherein he stated that he discovered the letter on the 17 March 2020. The letter appears on page 42 of Bundle D and it is the original document which he found in the photocopier. He folded the letter and took it to his class. He made a long entry at the back of the document. The date of the letter is 11 November 2019. The school letter head does not appear on the document. The document on page 43 of bundle D has the department logo and letter head. That document is the exact copy of the letter which he found. The only difference is that the copy he found had no letter head and also the bottom part of the letter looks different as well.
4.16 He was shortlisted for the first round of the interviews and was interviewed. There was a dispute that was lodged and the finding of the grievance hearing was that the process had to be redone from the short listing stage. Subsequent to that, the process was redone.
4.17 He was not shortlisted in the second round. The second round is what took place after the grievance hearing. There were other new members in the governing body for the second round. Some members had left the governing body. There was a different committee for the new SGB for the new process to take place. Seven members had resigned and two had gone AWOL and another by-election had to take place.
4.18 He (Mr Govender) always claimed right from the outset that KS Naidoo captured the entire process by taking it upon himself to appoint his own electoral officer. He did not have the authority to do so. He had a vested interest in the process being the applicant. He was in close contact with the members of the governing body since he was the Principal.
4.19 Under cross examination he said the following:- the addition of new members to the SGB in the by-elections does not constitute the new SGB. The circuit manager appoints electoral officers. The circuit manager, Dr LB Swartz appointed Mr H Ramnarain and Mr KS Naidoo appointed Mr P Moodley.
4.20 When he (Mr Govender) was asked to produce the letter that was supposedly issued by KS Naidoo, his response was that on the 13th of March 2020 he had questioned the validity of the deployment letter and he asked the chairperson Mr Mabaso if KS Naidoo could produce a copy of the deployment letter but that was not forthcoming. Mr Mabaso asked him (Mr Govender) if he wanted to proceed with the case and his answer was in the negative because at that stage he was advised by his union (SATU) not to proceed with the case because there was no deployment letter that was produced.
4.21 The document on page 43 of Annexure D is the letter dated 11 November 2019 which was addressed to the Principal. He does not know the author of the letter but it was found by him (Mr Govendor) on the photocopier of the school.
4.22 The person who was appointed to the post was NR Naidoo and not KS Naidoo. KS Naidoo committed a fraud in terms of the deployment letter. It would be assumed that he stood to gain from that illegal activity. KS Naidoo did not benefit either because the post was awarded to someone else. He (Mr Govender) knows how he performed in round 1.
4.23 When he was asked if he created the deployment letter appearing on page no.42 of Annexure D his response was that he asked for the deployment letter on the 13th of March 2020 and it was never produced. He contested the findings appearing on page 44 of the same bundle. The deployment letter which he requested had not been produced as at the date of the arbitration.
4.24 The grievance hearing was held on the 13th of March 2020 and the date of signature on the grievance outcome is 19 June 2020.
4.25 He conceded that documents always follow the grievance hearing.
4.26 He found the letter without the letter head on the 17 March 2020.
4.27 He asked Mr Itumeleng on a number of times for the grievance outcome report. It took long before he was furnished with it and he was devastated by the outcome. The first thing he did was to ask him for a grievance outcome because he was very confident that they won the case. However, he had to wait for another three weeks before he could get it.
4.28 Mr Itumeleng would just say that they were waiting for the signature on the outcome report every time he (Mr Govender) phoned him. He was totally devastated by the outcome, and through his union, he requested Mr Itumeleng to furnish him with the date when the deployment letter was made available to the Department. Mr Itumeleng advised that the first question to be asked is:- “when was the deployment letter made available?” When it was put to him (Mr Govender) that Mr Itumeleng would have never asked that question, his response was that he was speaking the truth under oath.
4.29 The document appearing on page 43 of Annexure D is not legitimate because it does not have the letter head.
.
4.30 The letter with the letterhead and signature was not produced when he asked for it.
4.31 On the 13th March 2020 KS Naidoo was present and representing the Respondent in the grievance hearing but he (Mr Govender) found it very strange that KS Naidoo could not produce such an important document. He was also shocked that the chairperson of the grievance committee, Mr Mabaso did not have the same document readily available. The hearing was concluded around midday and the Respondent had ample time to fetch the letter but that was not done. It was only found on the 17th of March 2020. On the advice of his union he (Mr Govender) closed the matter
.
4.32 When he was asked if his grievance came before HRM 70 of 2018, his response was that the process was held in 2019.
4.33 By virtue of PM Moodley presiding over the by-election, the SGB was illegitimate therefore the interview committee that recommended the incumbent who is the second Respondent in this case was illegitimate. He (Mr Govender) always questioned the validity of deployment letter,
4.34 When he was asked if he was complaining because he was not the one recommended for the post, he responded in the negative. He stated further that he lodged a dispute because of the validity of the deployment letter and he was not against the appointee. He has utmost respect for the appointee.
4.35 He feels that he is a better candidate than the appointee. He was put in a better position in the first round. It became common knowledge that he was ranked no.2 and K S Naidoo no.6 in the first round.
4.36 When it was put to him that the reason for the change in the ranking of the candidates was because criteria changed and when that happens it makes a difference, his response was that the criteria might have changed and he cannot challenge the criteria if the committee agreed on that but he was challenging the process.
4.37 The process was flawed right from the outset with a deployment letter. The person who issued the letter on page 43 of Annexure D is the same individual that conducted round 2 of the process.
4.38 When it was put to him that he was mistaken because the circuit office does not conduct the process, his response was that Mr Subramain was the Respondent’s resource person.
4.39 He (Mr Govender) left Phoenix Technical School in February 2022. He became aware of the illegitimacy of the SGB on the 17 March 2020 when he found the letter on the photocopier.
4.40 He subjected himself to the governance of the new SGB until February 2022. He was forced to do so. He had raised serious issues regarding the maladministration and mismanagement that was taking place at the school. Mr Itumeleng was aware of that because he (Mr Govender) copied him in the email and those matters were brought to the attention of the MEC’s office and there were investigations that were conducted. The issue was not resolved.
4.41 It is correct that he subjected himself to the decisions of the SGB as the employee of the department. What happened was beyond his control.
4.42 On re-examination he said that he was not the author of the letter appearing on page 42 of Annexure D. He had no access to Mr Subrayen’s letterhead and the department’s stamp appearing on the letter on page 43 of the same bundle.
4.43 He began to question the legitimacy of the SGB when Mr PM Moodley reported to the school to conduct SGB by-elections. He was aware that Phoenix Technical School had its own electoral officer.
4.44 When questioned by myself, he said the following:- he believed that he would have been appointed to the disputed post with the level of confidence he had at the interviews for round 1 and his contributions at the school. He would have made a better candidate for the post but he was not shortlisted for the interviews.
Respondent’s case
4.45 Mr Vasu Devan Moonsamy Subryen testified as the Respondent’s only witness. He stated the following:- He was acting as the circuit manager at Mafukuzela Gandhi CFC Pinetown District since 2012. He was appointed to that post in 2015. He was also the circuit manager for Verulam site.
4.46 He was the resource person for the process that is being disputed. He knew Mr Govender. As per the directive from the Chief Education Specialist, he (Subrayen) was tasked to appoint an electoral officer to conduct the by-elections for the parent component as well as office bearers. That was his responsibility.
4.47 The original appointed person who was to preside over the by-elections was Mr Ramnarain of Greenbury School. At the time he was standing for the electoral officer of another school. The Principal from another school has to preside over the by-election in general. Mr Ramnarain indicated that he was unavailable due to his deployment to serve as the resource person for the deputy principal post at Daleview School.
4.48 He (Mr Subrayen) then deployed another Principal, Mr PM Moodley after it was established that Mr PM Moodley was available to serve as the electoral officer in Phoenix Technical School.
4.49 According to the report appearing on page 43 of Annexure D which Mr Govender received, PM Moodley executed the duty.
4.50 The document appearing on page 43 of bundle D is the appointment letter for Mr PM Moodley of Northview Primary to serve as an electoral officer at Phoenix Technical. His (Subrayen’s) signature appears on that document. The letter is dated the 11 November 2019. The stamp on the letter is customised reflecting his name only. His title was not put on it. It was a unique stamp. He takes full ownership of that letter.
4.51 He had no explanation for the letter appearing on page 42 of Annexure D because it does not have his signature and he could not take ownership of it.
4.52 There was a complaint about the fraudulent appointment of the electoral officer. The governance unit from Pinetown was deployed to go and look at the authenticity of the allegations. He (Mr Subrayen) was also requested to submit a mini report concerning the appointment of the electoral officer. He submitted the same on the 28th of October 2020.
4.53 He made a submission appearing on page 74 of Annexure D with regards to the deployment letter of 2019 by-elections. The letter outlines one of the reasons for the appointment of another electoral officer in 2019, it gives brief reasons in relation to the unavailability of Mr Ramnarain for the task. It also confirms that he appointed Mr PM Moodley as the electoral officer at Phoenix Technical school. The contents of the mini report and those of the deployment letter on page 43 of Annexure D are the same. He appointed Mr Moodley as per the mandate that is given to the office of the circuit manager.
4.54 There was no issue concerning the “anti deputy principalship” in Phoenix Technical school. He knew that the SBG governance unit of Pinetown district had to look at the legitimacy of the governing body.
4.55 He was directed by his superior Mr PHE Nkosi to check with governance unit and verify that all was legitimate before he could proceed with the Principal post. He was informed that all was clear he could proceed with the process.
4.56 He was involved in the selection process from 2012. He sat in many processes. The process of presiding over the SGB is separate from the process of appointing an electoral officer for the SGB.
4.57 Once governing body is elected and is in operation there is another process whereby the governing body has to elect its interview committee as per the directives of HRM Policy.
4.58 The electoral officer does not have any role in the election of the interview committee. If his (Subrayen’s) memory served him well, the interview committee is elected at the full sitting of the SGB under the chairmanship of the chairperson of the governing body. The electoral officer is not even present when the interview committee is elected.
4.59 Under cross–examination he stated the following:-He was a caretaker for Verulam circuit around 2019 -2020 but not for the whole year.
4.60 He would not say that he was officially aware but he heard that Mr Govender was the applicant for acting deputy principal post in Phoenix. He heard about the dispute in relation to deputy principal post.
4.61 He had not seen the letter appearing on page 42 of Annexure D prior to arbitration. The two documents look the same but there are some exceptions.
4.62 He thought that it was an assumption that the letter that appears on page 42 was authored in his office. He would not speculate how that letter was found in a photocopier. He did not find the letter but the person who found it can explain.
4.63 He disputed that the letter was prepared by Phoenix Technical School and signed by him on a later date.
4.64 The letter on page 43 was prepared by him and signed by him. He prepared the letter on the 19th of November 2019 but he would not be able to answer as to why it was not presented at the grievance enquiry. He was not part of the grievance hearing. It was produced on the 28th of October 2020. It is a typographical error that it is dated 28 October 2020. It should read “28 November 2019”
4.65 Letterheads changed as far as the Department is concerned which explains why the letter head appearing on the letter is different from other letterheads.
4.66 Mr Moodley was chosen because he was knowledgeable and was available to serve. His (Mr Subrayen’s) office does not keep a file of electoral officers appointed by the Department. He was not certain whether the deployment letter would still be found in his computer. His office issued letters to the school. The appointment letter was not kept at his office.
4.67 On re-examination he said that the letter of appointment of the electoral officer does not form part of the selection process.
4.68 When one attends grievance hearing, he or she will take documents relating to the subject matter. It is normal not to bring a letter to the governing body if the resource person is not told to bring it.
Arguments
Applicant’s argument
4.69 The Applicant argued, amongst other things the following:- the letter on page 43 of Annexure D was prepared post grievance hearing in order for the Respondent to present the evidence that the entire process was above board.
4.70 The appointment process was irregular. The letter was just a cover up for the irregular conduct.
4.71 The electoral officer, Mr PM Naidoo who was tasked with conducting by-election of the SGB was never delegated by the Head of Department in KwaZulu – Natal.
4.72 It is highly irregular for the Respondent not to keep a record of the deployment letters.
4.73 The SGB was irregularly constituted and therefore it was illegitimate.
4.74 He would have no reasonable cause to fabricate such a complex set pf allegations in order to have the process redone from short-listing
Respondent’s argument
4.75 The Respondents argued, amongst other things the following:- the appointment of the electoral officer, although it was made under extraordinary circumstances, was by no means illegal. Mr Moodley was standing for the electoral officer who had prior commitments.
4.76 SGB functioned from the date of by-elections and governed the Applicant, who was the member of the SMT (Senior Management Team) of the school. For the entire period, the SGB entered into transactions and conducted serious businesses that affected the entire school. . As at the date of the arbitration, the SGB had not been declared illegitimate by the First Respondent. It cannot be invalid at the convenience of the Applicant, just because the Applicant was unsuccessful in the selection process.
4.77 It is noteworthy that the Applicant subjected himself to the process of an “illegitimate SGB”, only to cry foul when the processes did not go his way.
4.78 Most probably the Applicant would not have alleged that the appointment of the incumbent was unlawful had he been the recommended candidate. He does not complain about the qualifications of the incumbent. His case is limited to the appointment of the electoral officer in a different unrelated process.
4.79 The interview committee correctly followed all the guidelines for selection of candidates as contained in HRM 36 of 2019.
4.80 The only plausible explanation for the existence of the unsigned, unstamped, and non – letter –headed document is that it was fabricated by the Applicant to make a case. The First Respondent produced a proper copy of an appointment letter of the electoral officer.
4.81 The Applicant does not even allude to the activities that transpired during the selection process. He was clutching at straws and was desperate. He sought to make a case which is non-existent.
ANALYSIS OF EVIDENCE AND ARGUMENT
4.82 I have examined the evidence submitted by both parties and have duly perused submitted annexures. I am required to determine whether the First Respondent committed an unfair labour practice due to its unlawful appointment of the electoral officer to conduct by-elections for the school governing body.
4.83 The Applicant does not challenge the fairness of the selection process nor is he challenging the outcome of the interviews.
4.84 The Applicant bears the onus of proving that the First Respondent committed an unfair labour practice.
4.85 Central to appointments or promotion of employees is the principle that the courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. In deciding on an unfair labour practice the courts have clarified the test to be that of fairness.
4.86 In Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA/11 (2013 ZALAC 3, (2013) BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013) the Labour Court reiterated that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
4.87 In this case the Applicant applied for a position of Principal Phoenix Technical School and his application was, however unsuccessful. He challenged the appointment of Mr PM Moodley as the electoral officer to conduct the SGB by-election. He argued that the conduct constituted an unfair labour practice.
4.88 The Applicant failed to give satisfying reasons why the appointment of Mr PM Moodley was unlawful. He conceded under oath that the person who appoints the electoral officer is the circuit manager. The Respondent’s witness, Mr Subrayen who is the circuit manager testified that the original appointed person who was to preside over the school governing body bi-elections was Mr Ramnarain of Greenbury school, and he was unavailable to conduct that process.
4.89 He also said that in general the Principal from another school has to preside over the SGB election and Mr Ramnarain indicated that he was unavailable due to his deployment to serve as the resource person for the deputy principal post at Daleview School. He (Mr Govender) then deployed Mr Moodley who is a Principal after it was established that he was available to serve as the electoral officer in Phoenix Technical.
4.90 The Respondent’s witness also said that Mr PM Moodley was appointed because of the unavailability of Mr Ramnarain due to other work commitments, Mr PM Moodley’s availability at the time of conducting by-election for the school governing body and also because of his knowledge. The Applicant did not dispute these facts. All he maintained was that Mr Ramnarain should have been the one to conduct the bi-election because he was the electoral officer for Phoenix Technical School.
4.91 I accept the Respondent’s explanation why PM Moodley was appointed as the electoral officer as plausible. It does not appear anywhere in the Gazette that a Principal from another school is barred from conducting by-election of the school governing body of another school. In the circumstances I find there is no basis in the Applicant’s claim that the appointment of Mr PM Moodley as the electoral officer was unlawful.
4.92 It was emphasized at arbitration that the appointment of the electoral officer Mr PM Moodley was the only issue.
4.93 In the case of National Commissioner of the SA Police Service v Safety and Security Sectoral Bargaining Council and Others (2005) 26 ILJ 903 (LC) the court held that it is important for an applicant to show a casual connection between the unfairness complained of and the prejudice suffered.
4.94 In Sun International Management (Pty) Ltd v CCMA and Others (LC) JR 939/14, 18-11-26 (unreported case) the court held that, it is not enough to merely show that there was a breach of protocol or procedures in the recruitment process, it is also necessary for a complainant to show that the breach of the procedure had unfairly prejudiced him.
4.95 It is clear from the decisions mentioned supra that the Applicant must not only show that there was breach of the procedure but also that he met the inherent requirements of the post, he was the best candidate for the post, and the decision of appointing another individual in preference over him was unfair.
4.96 The Applicant has led no evidence whatsoever to show that, but for the alleged breach of procedure, he would probably have been appointed to the contested post. He said that he was not contesting the appointment of Mr KS Naidoo whom he highly respects. There was no satisfying evidence that he was prejudiced by “the breach of the procedure”. He did not take an opportunity to present this crucial evidence even when he was given an opportunity to do so at arbitration.
4.97 Even if I am wrong in my finding that the appointment of PM Moodley as the electoral officer was not unlawful, the Applicant has not shown that he was a suitable candidate for consideration for the post and also that he was the best candidate.
4.98 The evidence was led that he was not shortlisted in the second round. Throughout the arbitration proceedings he seemed not to take issue with that. The Respondent’s submission, that the Applicant subjected himself to the process he claimed was “illegitimate”, and only cried foul when the processes did not go his way, has basis. The reason he gave why he subjected himself to the same process does not hold. I am persuaded to agree with the Respondent’s submission that he would not have referred the dispute and complain about breach of procedure if he was appointed to the disputed post.
4.99 Considering all of the above, I conclude that the Respondent did not commit an unfair labour practice relating to promotion by appointing PM Moodley as the electoral officer to conduct bi-elections for the school governing body of Phoenix Technical School.
AWARD
I make the following award:
4.100 The First Respondent, namely, Department of Education KZN did not commit an unfair labour practice against the Applicant, Moonsamy Govender by appointing Mr PM Moodley as the electoral officer to conduct SGB bi-election;
4.101 The application is dismissed.
DATED AT DURBAN ON THIS 19 April 2022
Nonhlanhla Dubazane
ELRC Senior Commissioner
Commissioner: Nonhlanhla Dubazane
Date of Award: 19 April 2022
In the matter between
NAPTOSA obo Moonsamy Govender
(Union/Applicant)
And
DEPARTMENT OF EDUCATION – KWAZULU NATAL
(Respondent)
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was heard on the 1st September 2021 & 31st January 2022 respectively under the auspices of the Education labour Relations Council. Proceedings at Dainfern, Ashville, Durban.
1.2 The Applicant, Mr Moonsamy Govender was present and represented by Mr Rishal Jugath, a NAPTOSA official. The First Respondent is KwaZulu Natal Department of Education (the Department). The Second Respondent is Mr Navendra R Naidoo. The First Respondent was represented by its HR Manager, Mr I M Makhooe. The Second Respondent was represented by SADTU official.
2. ISSUE TO BE DECIDED
2.1 I have to determine whether the Respondent committed an unfair labour practice relating to promotion by unlawfully appointing Mr PN Moodley as the electoral officer to conduct SGB bi-elections.
3. BACKGROUND TO THE ISSUE
3.1 Mr Govender works for the First Respondent (The Department). The Department oversees primary and secondary education in South Africa.
3.2 The Applicant referred an unfair labour practice dispute relating to promotion to the bargaining council.
3.3 The matter was conciliated and remained unresolved. A certificate of non – resolution was issued.
3.4 Arbitration proceedings took place on the dates aforementioned.
3.5 The Applicant averred in his opening statement that the appointment of the electoral officer, Mr P M Moodley was unlawful, and as such the SGB was illegitimate. The conduct of the First Respondent amounted to an unfair labour practice relating to promotion. The relief he is seeking is that the appointment be declared unlawful and the selection process be started afresh. .
3.6 The Respondent stated that selection process in terms of HRM 70 of 2018 has got nothing to do with election of SGB members. The election of Mr PM Moodley as the electoral officer was lawful.
3.7 Parties submitted Annexures A – D.
4. SURVEY OF EVIDENCE AND ARGUMENT
Common cause facts
4.1 A position of Principal: Phoenix Technical School (post number 241) was advertised and he responded to the advert. He was shortlisted and participated in the interviews “first round” which took place on the 13th July 2019. Subsequent thereto he and others lodged a grievance in relation to the selection process. KS Naidoo was the acting principal at Phoenix Technical School at the time and he was also the applicant to the post.
4.2 Mr Govender’s claim was that the school governing body (SGB) was illegally constituted as the electoral officer who was conducting the school governing body (SGB) by-elections, PM Moodley was not formally appointed
4.3 The appointment letter for PM Moodley was not produced at the grievance hearing.
4.4 The Second Respondent, Mr Navendra Naidoo was appointed to the disputed post.
4.5 HRM Circular 70 of 2018 regulates the recruitment and appointment processes at the Respondent.
Applicant’s case
4.6 Mr Moonsamy Govendor took an oath and gave the following evidence:-In summary and of importance in this case he informed us about his educational qualifications.
4.7 He said the following:-. There was no appointment that was made during the first round because he and other members had lodged a grievance. Mr KS Naidoo and another person also lodged a grievance.
4.8 It happened that the SGB members had resigned and their resignation meant that there was no governing body in place after round one which then necessitated a bi- election of the new governing body members.
4.9 It is the electoral officer who conducts the election of the SGB. In the case of Phoenix Technical school their neighbouring school is Greenbury Secondary School. The Principal of Greenbury at the time was H Ramnarian and he was electoral officer for Phoenix Tech. He conducted the SGB bi-elections and elected 7 members. Two members of the SGB had gone AWOL. He (Mr Govender) thought that there should have been a second bi-election to elect members to replace them.
4.10 The second bi-election took place around November 2019. He (Mr Govender) questioned the validity of the second round of bi-elections because the electoral officer that was tasked to conduct the process was not formally appointed.
4.11 The procedure for appointing the SGB electoral officer lies with the Head of Department. The Head of department does not physically appoint all electoral officers. It is impossible to do that. The circuit manager takes charge of that.
4.12 Electoral officer has been defined in the Provincial Gazette No.1895. Phoenix Techincal had an appointed electoral officer. Namely, H Ramnarain. He was not appointed as electoral officer for the second round of bi-elections. The electoral officer was PM Moodley.
4.13 Mr Moodley’s appointment was not legitimate because there was no deployment letter. He (Mr Govender) lodged a grievance regarding the “acting principalship” at Phoenix Technical school. The grievance hearing for “acting principalship” was held on 13 March 2020 and one of the two issues that were raised in the grievance was the invalidity of the SGB. He questioned the appointment of Mr P M Moodley as an electoral officer of the SGB.
4.14 The SGB produced a letter as required by the grievant. Reference is made to paragraph 3 titled “FINDINGS” in the chairperson’s recommendation after the grievance hearing was held. The following is stated:- “There was prima facie evidence that an appointment of Mr PM Moodley as an electoral officer was above board, a letter was produced The SGB is legitimate and proper as per SASA requirements.” He (Mr Govender) was present at this grievance hearing. The letter that is mentioned was not presented on the 13th of March 2020.
4.15 He (Govender) wrote his affidavit on the 10 October 2020 wherein he stated that he discovered the letter on the 17 March 2020. The letter appears on page 42 of Bundle D and it is the original document which he found in the photocopier. He folded the letter and took it to his class. He made a long entry at the back of the document. The date of the letter is 11 November 2019. The school letter head does not appear on the document. The document on page 43 of bundle D has the department logo and letter head. That document is the exact copy of the letter which he found. The only difference is that the copy he found had no letter head and also the bottom part of the letter looks different as well.
4.16 He was shortlisted for the first round of the interviews and was interviewed. There was a dispute that was lodged and the finding of the grievance hearing was that the process had to be redone from the short listing stage. Subsequent to that, the process was redone.
4.17 He was not shortlisted in the second round. The second round is what took place after the grievance hearing. There were other new members in the governing body for the second round. Some members had left the governing body. There was a different committee for the new SGB for the new process to take place. Seven members had resigned and two had gone AWOL and another by-election had to take place.
4.18 He (Mr Govender) always claimed right from the outset that KS Naidoo captured the entire process by taking it upon himself to appoint his own electoral officer. He did not have the authority to do so. He had a vested interest in the process being the applicant. He was in close contact with the members of the governing body since he was the Principal.
4.19 Under cross examination he said the following:- the addition of new members to the SGB in the by-elections does not constitute the new SGB. The circuit manager appoints electoral officers. The circuit manager, Dr LB Swartz appointed Mr H Ramnarain and Mr KS Naidoo appointed Mr P Moodley.
4.20 When he (Mr Govender) was asked to produce the letter that was supposedly issued by KS Naidoo, his response was that on the 13th of March 2020 he had questioned the validity of the deployment letter and he asked the chairperson Mr Mabaso if KS Naidoo could produce a copy of the deployment letter but that was not forthcoming. Mr Mabaso asked him (Mr Govender) if he wanted to proceed with the case and his answer was in the negative because at that stage he was advised by his union (SATU) not to proceed with the case because there was no deployment letter that was produced.
4.21 The document on page 43 of Annexure D is the letter dated 11 November 2019 which was addressed to the Principal. He does not know the author of the letter but it was found by him (Mr Govendor) on the photocopier of the school.
4.22 The person who was appointed to the post was NR Naidoo and not KS Naidoo. KS Naidoo committed a fraud in terms of the deployment letter. It would be assumed that he stood to gain from that illegal activity. KS Naidoo did not benefit either because the post was awarded to someone else. He (Mr Govender) knows how he performed in round 1.
4.23 When he was asked if he created the deployment letter appearing on page no.42 of Annexure D his response was that he asked for the deployment letter on the 13th of March 2020 and it was never produced. He contested the findings appearing on page 44 of the same bundle. The deployment letter which he requested had not been produced as at the date of the arbitration.
4.24 The grievance hearing was held on the 13th of March 2020 and the date of signature on the grievance outcome is 19 June 2020.
4.25 He conceded that documents always follow the grievance hearing.
4.26 He found the letter without the letter head on the 17 March 2020.
4.27 He asked Mr Itumeleng on a number of times for the grievance outcome report. It took long before he was furnished with it and he was devastated by the outcome. The first thing he did was to ask him for a grievance outcome because he was very confident that they won the case. However, he had to wait for another three weeks before he could get it.
4.28 Mr Itumeleng would just say that they were waiting for the signature on the outcome report every time he (Mr Govender) phoned him. He was totally devastated by the outcome, and through his union, he requested Mr Itumeleng to furnish him with the date when the deployment letter was made available to the Department. Mr Itumeleng advised that the first question to be asked is:- “when was the deployment letter made available?” When it was put to him (Mr Govender) that Mr Itumeleng would have never asked that question, his response was that he was speaking the truth under oath.
4.29 The document appearing on page 43 of Annexure D is not legitimate because it does not have the letter head.
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4.30 The letter with the letterhead and signature was not produced when he asked for it.
4.31 On the 13th March 2020 KS Naidoo was present and representing the Respondent in the grievance hearing but he (Mr Govender) found it very strange that KS Naidoo could not produce such an important document. He was also shocked that the chairperson of the grievance committee, Mr Mabaso did not have the same document readily available. The hearing was concluded around midday and the Respondent had ample time to fetch the letter but that was not done. It was only found on the 17th of March 2020. On the advice of his union he (Mr Govender) closed the matter
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4.32 When he was asked if his grievance came before HRM 70 of 2018, his response was that the process was held in 2019.
4.33 By virtue of PM Moodley presiding over the by-election, the SGB was illegitimate therefore the interview committee that recommended the incumbent who is the second Respondent in this case was illegitimate. He (Mr Govender) always questioned the validity of deployment letter,
4.34 When he was asked if he was complaining because he was not the one recommended for the post, he responded in the negative. He stated further that he lodged a dispute because of the validity of the deployment letter and he was not against the appointee. He has utmost respect for the appointee.
4.35 He feels that he is a better candidate than the appointee. He was put in a better position in the first round. It became common knowledge that he was ranked no.2 and K S Naidoo no.6 in the first round.
4.36 When it was put to him that the reason for the change in the ranking of the candidates was because criteria changed and when that happens it makes a difference, his response was that the criteria might have changed and he cannot challenge the criteria if the committee agreed on that but he was challenging the process.
4.37 The process was flawed right from the outset with a deployment letter. The person who issued the letter on page 43 of Annexure D is the same individual that conducted round 2 of the process.
4.38 When it was put to him that he was mistaken because the circuit office does not conduct the process, his response was that Mr Subramain was the Respondent’s resource person.
4.39 He (Mr Govender) left Phoenix Technical School in February 2022. He became aware of the illegitimacy of the SGB on the 17 March 2020 when he found the letter on the photocopier.
4.40 He subjected himself to the governance of the new SGB until February 2022. He was forced to do so. He had raised serious issues regarding the maladministration and mismanagement that was taking place at the school. Mr Itumeleng was aware of that because he (Mr Govender) copied him in the email and those matters were brought to the attention of the MEC’s office and there were investigations that were conducted. The issue was not resolved.
4.41 It is correct that he subjected himself to the decisions of the SGB as the employee of the department. What happened was beyond his control.
4.42 On re-examination he said that he was not the author of the letter appearing on page 42 of Annexure D. He had no access to Mr Subrayen’s letterhead and the department’s stamp appearing on the letter on page 43 of the same bundle.
4.43 He began to question the legitimacy of the SGB when Mr PM Moodley reported to the school to conduct SGB by-elections. He was aware that Phoenix Technical School had its own electoral officer.
4.44 When questioned by myself, he said the following:- he believed that he would have been appointed to the disputed post with the level of confidence he had at the interviews for round 1 and his contributions at the school. He would have made a better candidate for the post but he was not shortlisted for the interviews.
Respondent’s case
4.45 Mr Vasu Devan Moonsamy Subryen testified as the Respondent’s only witness. He stated the following:- He was acting as the circuit manager at Mafukuzela Gandhi CFC Pinetown District since 2012. He was appointed to that post in 2015. He was also the circuit manager for Verulam site.
4.46 He was the resource person for the process that is being disputed. He knew Mr Govender. As per the directive from the Chief Education Specialist, he (Subrayen) was tasked to appoint an electoral officer to conduct the by-elections for the parent component as well as office bearers. That was his responsibility.
4.47 The original appointed person who was to preside over the by-elections was Mr Ramnarain of Greenbury School. At the time he was standing for the electoral officer of another school. The Principal from another school has to preside over the by-election in general. Mr Ramnarain indicated that he was unavailable due to his deployment to serve as the resource person for the deputy principal post at Daleview School.
4.48 He (Mr Subrayen) then deployed another Principal, Mr PM Moodley after it was established that Mr PM Moodley was available to serve as the electoral officer in Phoenix Technical School.
4.49 According to the report appearing on page 43 of Annexure D which Mr Govender received, PM Moodley executed the duty.
4.50 The document appearing on page 43 of bundle D is the appointment letter for Mr PM Moodley of Northview Primary to serve as an electoral officer at Phoenix Technical. His (Subrayen’s) signature appears on that document. The letter is dated the 11 November 2019. The stamp on the letter is customised reflecting his name only. His title was not put on it. It was a unique stamp. He takes full ownership of that letter.
4.51 He had no explanation for the letter appearing on page 42 of Annexure D because it does not have his signature and he could not take ownership of it.
4.52 There was a complaint about the fraudulent appointment of the electoral officer. The governance unit from Pinetown was deployed to go and look at the authenticity of the allegations. He (Mr Subrayen) was also requested to submit a mini report concerning the appointment of the electoral officer. He submitted the same on the 28th of October 2020.
4.53 He made a submission appearing on page 74 of Annexure D with regards to the deployment letter of 2019 by-elections. The letter outlines one of the reasons for the appointment of another electoral officer in 2019, it gives brief reasons in relation to the unavailability of Mr Ramnarain for the task. It also confirms that he appointed Mr PM Moodley as the electoral officer at Phoenix Technical school. The contents of the mini report and those of the deployment letter on page 43 of Annexure D are the same. He appointed Mr Moodley as per the mandate that is given to the office of the circuit manager.
4.54 There was no issue concerning the “anti deputy principalship” in Phoenix Technical school. He knew that the SBG governance unit of Pinetown district had to look at the legitimacy of the governing body.
4.55 He was directed by his superior Mr PHE Nkosi to check with governance unit and verify that all was legitimate before he could proceed with the Principal post. He was informed that all was clear he could proceed with the process.
4.56 He was involved in the selection process from 2012. He sat in many processes. The process of presiding over the SGB is separate from the process of appointing an electoral officer for the SGB.
4.57 Once governing body is elected and is in operation there is another process whereby the governing body has to elect its interview committee as per the directives of HRM Policy.
4.58 The electoral officer does not have any role in the election of the interview committee. If his (Subrayen’s) memory served him well, the interview committee is elected at the full sitting of the SGB under the chairmanship of the chairperson of the governing body. The electoral officer is not even present when the interview committee is elected.
4.59 Under cross–examination he stated the following:-He was a caretaker for Verulam circuit around 2019 -2020 but not for the whole year.
4.60 He would not say that he was officially aware but he heard that Mr Govender was the applicant for acting deputy principal post in Phoenix. He heard about the dispute in relation to deputy principal post.
4.61 He had not seen the letter appearing on page 42 of Annexure D prior to arbitration. The two documents look the same but there are some exceptions.
4.62 He thought that it was an assumption that the letter that appears on page 42 was authored in his office. He would not speculate how that letter was found in a photocopier. He did not find the letter but the person who found it can explain.
4.63 He disputed that the letter was prepared by Phoenix Technical School and signed by him on a later date.
4.64 The letter on page 43 was prepared by him and signed by him. He prepared the letter on the 19th of November 2019 but he would not be able to answer as to why it was not presented at the grievance enquiry. He was not part of the grievance hearing. It was produced on the 28th of October 2020. It is a typographical error that it is dated 28 October 2020. It should read “28 November 2019”
4.65 Letterheads changed as far as the Department is concerned which explains why the letter head appearing on the letter is different from other letterheads.
4.66 Mr Moodley was chosen because he was knowledgeable and was available to serve. His (Mr Subrayen’s) office does not keep a file of electoral officers appointed by the Department. He was not certain whether the deployment letter would still be found in his computer. His office issued letters to the school. The appointment letter was not kept at his office.
4.67 On re-examination he said that the letter of appointment of the electoral officer does not form part of the selection process.
4.68 When one attends grievance hearing, he or she will take documents relating to the subject matter. It is normal not to bring a letter to the governing body if the resource person is not told to bring it.
Arguments
Applicant’s argument
4.69 The Applicant argued, amongst other things the following:- the letter on page 43 of Annexure D was prepared post grievance hearing in order for the Respondent to present the evidence that the entire process was above board.
4.70 The appointment process was irregular. The letter was just a cover up for the irregular conduct.
4.71 The electoral officer, Mr PM Naidoo who was tasked with conducting by-election of the SGB was never delegated by the Head of Department in KwaZulu – Natal.
4.72 It is highly irregular for the Respondent not to keep a record of the deployment letters.
4.73 The SGB was irregularly constituted and therefore it was illegitimate.
4.74 He would have no reasonable cause to fabricate such a complex set pf allegations in order to have the process redone from short-listing
Respondent’s argument
4.75 The Respondents argued, amongst other things the following:- the appointment of the electoral officer, although it was made under extraordinary circumstances, was by no means illegal. Mr Moodley was standing for the electoral officer who had prior commitments.
4.76 SGB functioned from the date of by-elections and governed the Applicant, who was the member of the SMT (Senior Management Team) of the school. For the entire period, the SGB entered into transactions and conducted serious businesses that affected the entire school. . As at the date of the arbitration, the SGB had not been declared illegitimate by the First Respondent. It cannot be invalid at the convenience of the Applicant, just because the Applicant was unsuccessful in the selection process.
4.77 It is noteworthy that the Applicant subjected himself to the process of an “illegitimate SGB”, only to cry foul when the processes did not go his way.
4.78 Most probably the Applicant would not have alleged that the appointment of the incumbent was unlawful had he been the recommended candidate. He does not complain about the qualifications of the incumbent. His case is limited to the appointment of the electoral officer in a different unrelated process.
4.79 The interview committee correctly followed all the guidelines for selection of candidates as contained in HRM 36 of 2019.
4.80 The only plausible explanation for the existence of the unsigned, unstamped, and non – letter –headed document is that it was fabricated by the Applicant to make a case. The First Respondent produced a proper copy of an appointment letter of the electoral officer.
4.81 The Applicant does not even allude to the activities that transpired during the selection process. He was clutching at straws and was desperate. He sought to make a case which is non-existent.
ANALYSIS OF EVIDENCE AND ARGUMENT
4.82 I have examined the evidence submitted by both parties and have duly perused submitted annexures. I am required to determine whether the First Respondent committed an unfair labour practice due to its unlawful appointment of the electoral officer to conduct by-elections for the school governing body.
4.83 The Applicant does not challenge the fairness of the selection process nor is he challenging the outcome of the interviews.
4.84 The Applicant bears the onus of proving that the First Respondent committed an unfair labour practice.
4.85 Central to appointments or promotion of employees is the principle that the courts and commissioners alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions. In deciding on an unfair labour practice the courts have clarified the test to be that of fairness.
4.86 In Apollo Tyres SA (Pty) Ltd v CCMA and Others (DA/11 (2013 ZALAC 3, (2013) BLLR 434 (LAC); (2013) 34 ILJ 1120 (LAC) (21 February 2013) the Labour Court reiterated that unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
4.87 In this case the Applicant applied for a position of Principal Phoenix Technical School and his application was, however unsuccessful. He challenged the appointment of Mr PM Moodley as the electoral officer to conduct the SGB by-election. He argued that the conduct constituted an unfair labour practice.
4.88 The Applicant failed to give satisfying reasons why the appointment of Mr PM Moodley was unlawful. He conceded under oath that the person who appoints the electoral officer is the circuit manager. The Respondent’s witness, Mr Subrayen who is the circuit manager testified that the original appointed person who was to preside over the school governing body bi-elections was Mr Ramnarain of Greenbury school, and he was unavailable to conduct that process.
4.89 He also said that in general the Principal from another school has to preside over the SGB election and Mr Ramnarain indicated that he was unavailable due to his deployment to serve as the resource person for the deputy principal post at Daleview School. He (Mr Govender) then deployed Mr Moodley who is a Principal after it was established that he was available to serve as the electoral officer in Phoenix Technical.
4.90 The Respondent’s witness also said that Mr PM Moodley was appointed because of the unavailability of Mr Ramnarain due to other work commitments, Mr PM Moodley’s availability at the time of conducting by-election for the school governing body and also because of his knowledge. The Applicant did not dispute these facts. All he maintained was that Mr Ramnarain should have been the one to conduct the bi-election because he was the electoral officer for Phoenix Technical School.
4.91 I accept the Respondent’s explanation why PM Moodley was appointed as the electoral officer as plausible. It does not appear anywhere in the Gazette that a Principal from another school is barred from conducting by-election of the school governing body of another school. In the circumstances I find there is no basis in the Applicant’s claim that the appointment of Mr PM Moodley as the electoral officer was unlawful.
4.92 It was emphasized at arbitration that the appointment of the electoral officer Mr PM Moodley was the only issue.
4.93 In the case of National Commissioner of the SA Police Service v Safety and Security Sectoral Bargaining Council and Others (2005) 26 ILJ 903 (LC) the court held that it is important for an applicant to show a casual connection between the unfairness complained of and the prejudice suffered.
4.94 In Sun International Management (Pty) Ltd v CCMA and Others (LC) JR 939/14, 18-11-26 (unreported case) the court held that, it is not enough to merely show that there was a breach of protocol or procedures in the recruitment process, it is also necessary for a complainant to show that the breach of the procedure had unfairly prejudiced him.
4.95 It is clear from the decisions mentioned supra that the Applicant must not only show that there was breach of the procedure but also that he met the inherent requirements of the post, he was the best candidate for the post, and the decision of appointing another individual in preference over him was unfair.
4.96 The Applicant has led no evidence whatsoever to show that, but for the alleged breach of procedure, he would probably have been appointed to the contested post. He said that he was not contesting the appointment of Mr KS Naidoo whom he highly respects. There was no satisfying evidence that he was prejudiced by “the breach of the procedure”. He did not take an opportunity to present this crucial evidence even when he was given an opportunity to do so at arbitration.
4.97 Even if I am wrong in my finding that the appointment of PM Moodley as the electoral officer was not unlawful, the Applicant has not shown that he was a suitable candidate for consideration for the post and also that he was the best candidate.
4.98 The evidence was led that he was not shortlisted in the second round. Throughout the arbitration proceedings he seemed not to take issue with that. The Respondent’s submission, that the Applicant subjected himself to the process he claimed was “illegitimate”, and only cried foul when the processes did not go his way, has basis. The reason he gave why he subjected himself to the same process does not hold. I am persuaded to agree with the Respondent’s submission that he would not have referred the dispute and complain about breach of procedure if he was appointed to the disputed post.
4.99 Considering all of the above, I conclude that the Respondent did not commit an unfair labour practice relating to promotion by appointing PM Moodley as the electoral officer to conduct bi-elections for the school governing body of Phoenix Technical School.
AWARD
I make the following award:
4.100 The First Respondent, namely, Department of Education KZN did not commit an unfair labour practice against the Applicant, Moonsamy Govender by appointing Mr PM Moodley as the electoral officer to conduct SGB bi-election;
4.101 The application is dismissed.
DATED AT DURBAN ON THIS 19 April 2022
Nonhlanhla Dubazane
ELRC Senior Commissioner